Thursday, August 30, 2012

Leonard Embody Loses....Again

The 6th Circuit Court of Appeals affirmed the dismissal of the case that Leonard Embody brought against Tennessee park ranger Steve Ward today.

The Court found that Embody's 2nd, 4th, and 14th Amendment Rights were not violated when he was stopped in Radnor Lake State Natural Area while open-carrying a Draco AK-47 pistol. The Draco had an 11 1/2 inch barrel and had the tip of the muzzle painted orange much like an airsoft toy.

This case has been troublesome since the start due to Mr. Embody's hubris. To be frank, he went looking for trouble, found it, was momentarily detained, and then sent on his merry way no worse the wear. In response he filed a suit in US District Court for the Middle District of Tennessee. The end result of that was to have everyone's Second Amendment rights circumscribed due to that court's decision which misread the Heller decision.

For his troubles, Embody has done something rare: He has taken a position on the Second and Fourth Amendment that unites the Brady Center to Prevent Gun Violence and the Second Amendment Foundation. Both organizations think that the park ranger permissibly disarmed and detained Leonard Embody that day, notwithstanding his rights to possess the gun. So do we.

Alan Gura had filed an amicus brief on behalf of the Second Amendment Foundation and the CalGuns Foundation that argued the District Court got the decision right but for the wrong reasons. It asked the 6th Circuit to affirm the decision but find that the Second Amendment didn't apply in this case. The appeals court seems to have agreed with this and said the Second Amendment didn't apply in this situation due to qualified immunity.

Well, I don't read the decision as being that bad for the 2nd Amendment rights -- the judge merely said that carrying in a public park is not YET settled as part of the core right -- but admits that it MAY be, if examined. Since he did not need to do a COnstitutional analysis of whether public park carry is part of the 2nd Amendment right, he didn't even try to do it. (Given that he was determining if the ranger's qualified immunity stood up didn't require him to find that Embody had no 2nd Amendment right at issue -- ONLY that the existance of a protected right was not clearly settled law.)

It was a legal punt -- and rightly so. He flat out did not address the actual 2nd Amendment issue, only noted that SCOTUS hasn't answered this part of the question yet -- which was enough to kick Embody's claim of a civil rights violation on 2nd Amendment grounds. (Cops make mistakes; and cops aren't SCOTUS -- if a cop makes a good-faith decision under then-current law, and SCOTUS later decides that the situation should have treated as the exercise of a protected right, that doesn't mean the cop committed a civil rights violation under color of law -- which is what Embody was claiming.)

The RISK would be if SCOTUS hears the case and decides to determine the 2nd Amendment issue of "carrying a goofy weapon in a public park in a manner designed to troll for a false arrest". Make yourself a disagreeable jackass hard enough, and most judges will find a way to rule against you. . .

"went looking for trouble and he found it" with an ak47 "pistol" with a fake orange painted muzzle tip. with "friends" like this do we need enemies? i've carried a .45 legally for many years. it rides in a holster, sometimes concealed, occasionally openly carried, (legal where i live) and i've never had a problem with local law enforcement, but then i treat the cops with respect, and they return the same. to "geodkyt", an excellent summary, well said, thank you sir.